Appeal by defendant from judgment entered 24 June 1999 by
Judge E. Lynn Johnson in Superior Court, Wake County. Heard in the
Court of Appeals 12 February 2002.
Attorney General Roy Cooper, by Special Deputy Attorney
General Thomas J. Ziko, for the State.
Peter Wood for defendant-appellant.
McGEE, Judge.
Kevin Olin Smith (defendant) was convicted of robbery with a
dangerous weapon on 24 June 1999 and was sentenced to a term of
ninety-five to one hundred and twenty-three months in prison. At
trial, the State presented evidence that tended to show that Ray
Charles (Charles) was in his apartment in Raleigh, North Carolina
around noon on 4 March 1999. He answered a knock at his door, and
three men forced their way into his apartment. Charles described
two of the men as being "about [his] general height," around five
feet ten inches tall, and the third man as being taller, roughly
six feet or more. One of the men held him at gunpoint with a
shotgun while the other two ransacked his apartment. Charles
managed to escape when the man holding the shotgun went intoanother room to see what the other two men were doing. Charles ran
out of the apartment and asked a neighbor to call the police.
Charles looked back toward his apartment and saw the taller
man and one of the shorter men running towards the woods. One of
the men was carrying the shotgun. Charles also saw the third
robber coming down the stairs of the apartment with a suitcase.
Charles ran after the third robber and tackled him. After
struggling with the man, Charles was able to subdue him with the
help of a neighbor. The police arrived shortly thereafter.
Defendant's evidence tends to show that Amy Sue Deborde
(Deborde) received a telephone call from defendant between 12:30
p.m. and 1:00 p.m. on 4 March 1999. Deborde testified that
according to her caller ID, the telephone call came from
defendant's house. She picked defendant up at his house at around
12:50 p.m., and the two drove to another friend's house and spent
the remainder of the day together.
I.
Defendant first argues the trial court erred in allowing
defendant's former attorney to testify, despite defendant not
having waived the attorney-client privilege. Defendant contends he
was unable to effectively cross-examine his former attorney and was
unable to fully assert his right to cross-examine opposing
witnesses. We disagree.
Defendant asserts that it "is an established rule of the
common law that confidential communications made to an attorney in
his professional capacity by his client are privileged, and theattorney cannot be compelled to testify to them unless his client
consents."
Dobias v. White, 240 N.C. 680, 684, 83 S.E.2d 785, 788
(1954). However, "[t]he burden of establishing the attorney-client
privilege rests upon the claimant of the privilege."
Evans v.
United Servs. Auto. Ass'n, 142 N.C. App. 18, 32, 541 S.E.2d 782,
791 (2001).
"A privilege exists if (1) the relation of
attorney and client existed at the time the
communication was made, (2) the communication
was made in confidence, (3) the communication
relates to a matter about which the attorney
is being professionally consulted, (4) the
communication was made in the course of giving
or seeking legal advice for a proper purpose,
although litigation need not be contemplated,
and (5) the client has not waived the
privilege."
State v. McIntosh, 336 N.C. 517, 523-24, 444 S.E.2d 438, 442 (1994)
(quoting
State v. Murvin, 304 N.C. 523, 531, 284 S.E.2d 289, 294
(1981)).
In the case before us, the testimony of defendant's former
attorney did not contain any communication between defendant and
his former attorney. As a result, the attorney-client privilege
does not apply as to this testimony.
Defendant further argues that he was not able to properly
cross-examine the witness for fear he might open the door for the
State to present evidence of defendant's prior conviction. The
"Sixth Amendment right to confront witnesses and cross-examine them
is a fundamental right made applicable to the states by the
Fourteenth Amendment."
State v. Phillips, 88 N.C. App. 526, 532,
364 S.E.2d 196, 199 (1988),
rev'd on other grounds, 325 N.C. 222,381 S.E.2d 325 (1989). However, defendant has failed to show how
this right was violated by the trial court's allowing defendant's
former attorney to testify. The trial court limited the testimony
of defendant's former attorney to "issues involving corroborative
evidence" regarding the testimony of the State's witness. The
trial court also cautioned the State and defendant's former
attorney "not to disclose those matters" involving defendant's
prior conviction. With these limitations, the trial court did not
err in allowing defendant's former attorney to testify to matters
unrelated to the former attorney's representation of defendant. We
overrule this assignment of error.
II.
Defendant next argues the trial court erred in failing to
dismiss the charge of robbery with a dangerous weapon at the close
of the State's evidence. Defendant contends the State failed to
present evidence, when viewed in the light most favorable to the
State, that defendant was the third gunman. We disagree.
When considering a motion to dismiss for insufficiency of the
evidence, the trial court must "consider the evidence in the light
most favorable to the State, take it as true, and give the State
the benefit of every reasonable inference to be drawn therefrom."
State v. McNeil, 280 N.C. 159, 161-62, 185 S.E.2d 156, 157 (1971).
In reviewing a denial of a motion to dismiss based on insufficiency
of the evidence, this Court's "test for sufficiency of the evidence
in a criminal case is whether there is substantial evidence of all
elements of the offense charged that would allow any rational trierof fact to find beyond a reasonable doubt that the defendant
committed the offense."
State v. Buckom, 126 N.C. App. 368, 374,
485 S.E.2d 319, 323,
cert. denied, 522 U.S. 973, 139 L. Ed. 2d 326
(1997). Our Supreme Court has held that the testimony of an
accomplice is sufficient to sustain a conviction and to survive a
motion to dismiss based on the insufficiency of the evidence, if
the testimony produces convincing proof of the defendant's guilt.
See State v. Smith, 237 N.C. 1, 15, 74 S.E.2d 291, 300 (1953).
In the case before us, the State presented evidence, through
the testimony of an accomplice, that defendant participated in the
crime charged. The State also presented evidence, through the
testimony of the victim, that defendant matched the description of
one of the suspects. We overrule this assignment of error.
III.
Defendant next argues the trial court committed prejudicial
error when it explained to the jury the reason for the absence of
one of defendant's witnesses. Defendant contends the trial court's
explanation was unnecessary and unduly prejudiced the jury against
him.
Defendant intended to call Deborde as an alibi witness in his
defense. Deborde was present on the first day of trial; however,
she was not present on the second day of trial when defendant was
prepared to call her. Defendant explained to the trial court that
Deborde might be present the following day. The trial court agreed
to hold the trial open for one additional day, but the trial court
stated it would explain the witness's absence to the jury. Defendant objected. In the presence of the jury, the trial court
stated the witness
is under a court order to be here. She was
here yesterday and for some unexplained reason
has decided to go to Myrtle Beach, South
Carolina. Her father . . . is making whatever
communication he can with Ms. Deborde to put
her on a bus to come back tonight . . . the
Court is trying to bend over backwards to give
[defendant] an opportunity to present whatever
evidence he chooses to do so.
Defendant argues these comments prejudiced him because the trial
court impeached the witness's credibility by making the witness
seem immature and irresponsible.
It is axiomatic, of course, that it is
the lawful right of every litigant to expect
utter impartiality and neutrality in the judge
who tries his case and to have as well an
equally unbiased and properly instructed jury.
This right can neither be denied nor abridged.
Any remark of the presiding judge made in the
presence of the jury which has a tendency to
prejudice the jury against the unsuccessful
party may be grounds for a new trial.
Colonial Pipeline Co. v. Weaver, 310 N.C. 93, 103, 310 S.E.2d 338,
344 (1984) (citations omitted). The trial court "must exercise
extreme care to retain, and convey the appearance of retaining, a
cold neutrality."
State v. Watson, 1 N.C. App. 250, 252, 161
S.E.2d 159, 161 (1968).
However, because defendant "claims . . . he was deprived of a
fair trial by the [trial court's] statements, he 'has the burden of
showing prejudice in order to receive a new trial.'"
State v.
Davis, 353 N.C. 1, 41, 539 S.E.2d 243, 269 (2000),
cert. denied, __
U.S. __, 151 L. Ed. 2d 55 (2001) (quoting
State v. Gell, 351 N.C.
192, 207, 524 S.E.2d 332, 342,
cert. denied, 531 U.S. 867, 148 L.Ed. 2d 110 (2000)). Furthermore, "'[w]hether the accused was
deprived of a fair trial by the challenged remarks must be
determined by what [was] said and its probable effect upon the jury
in light of all attendant circumstances.'"
Davis, 353 N.C. at 41,
539 S.E.2d at 269 (quoting
State v. Burke, 342 N.C. 113, 122-23,
463 S.E.2d 212, 218 (1995)). In the case before us, defendant is
unable to show he has been prejudiced by the trial court's
statement. Even if Deborde's testimony was believed by the jury,
it would have supported the jury's determination of guilt. Deborde
testified defendant called her on her cell phone between 12:30 and
1:00 p.m. She then picked him up. However, the time periods
Deborde testified to would still have allowed for defendant to
commit the crime and flee to his home. While we believe the better
practice would be for the trial court to refrain from such
comments, the trial court in this instance committed no prejudicial
error. We overrule this assignment of error.
IV.
Defendant next argues the trial court erred in failing to
grant defendant's motion to dismiss the charge of robbery with a
dangerous weapon. Defendant contends his alibi witness, Deborde,
testified without impeachment that defendant called her from his
home at 12:30 p.m. and that defendant was with her from 12:50 p.m.
until nightfall. Thus, defendant reasons, Deborde's testimony
provides him with an "airtight" alibi defense. However, as
discussed above, this alibi is not "airtight," as defendant had
time to be at the crime scene when the crime was committed andstill make it to his home by 12:30 p.m. Therefore, we overrule
this assignment of error.
V.
Defendant next argues the trial court erred in failing to find
any mitigating factors at defendant's sentencing hearing.
Defendant contends he had strong ties to the community, but the
trial court ignored this evidence. We disagree.
"Defendant must prove the existence of a mitigating factor by
a preponderance of the evidence, and the trial court must find a
statutory mitigating factor only if the evidence supporting it is
substantial, uncontradicted, and manifestly credible."
State v.
Applewhite, 127 N.C. App. 677, 683, 493 S.E.2d 297, 301 (1997). In
Applewhite, the defendant's mother and first cousin were present in
the courtroom and announced that they were there supporting the
defendant, but neither person actually lived in the same community
as the defendant. A sister and a friend of the defendant did live
in the same community; however, this Court held the "fact that
these two people live in the same community as defendant, standing
alone, does not mandate a finding that defendant has a support
system in the community."
Id., 127 N.C. App. at 683-84, 493 S.E.2d
at 301. In the case before us, defendant argues that he has proven
a support system in the community by his mother's presence in the
courtroom during the trial and her statement that she "love[s]
[defendant] and . . . support[s] him whatever [the trial court's]
decision is[.]" However, as in
Applewhite, we find this evidence
is not "substantial, uncontradicted, and manifestly credible" tothe extent that the trial court erred in not finding a mitigating
factor. We overrule this assignment of error.
No error.
Judges GREENE and THOMAS concur.
Report per Rule 30(e).
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